Stark, R. v

Neutral Citation Number: [2016] EWCA Crim 850 IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 201504565/B1 Royal Courts of Justice Strand London, WC2A 2LL Date: Wednesday, 15th June 2016 B e f o r e: PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR BRIAN LEVESON) MR JUSTICE HOLROYDE MRS JUSTICE MAY DBE - - - - - - - - - - - - - - - - - - - - - R E G I N A v JAMES STARK - - - - - - - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited Trading as DTI 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr S Reid appeared on behalf of the Appellant Mr G Gelbart appeared on behalf of the Crown - - - - - - - - - - - - - - - - - - - - - J U D G M E N T (Approved) 1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 4th September 2015, in the Crown Court at Kingston-upon-Thames before Mr Recorder Purchas QC and a jury, this appellant, who is now aged 26 years, was convicted of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. He was sentenced to 18 months' imprisonment for that offence. A co-accused was convicted of assault occasioning actual bodily harm and received a sentence of imprisonment of 6 months which was suspended for 18 months with other ancillary orders being made. 2. This appellant now appeals against conviction by limited leave of Sir John Royce. He also seeks to renew his application in respect of three other grounds and for leave to appeal against sentence. 3. The facts can be summarised quite shortly. From about 8.00 pm on 15th November 2014 Ryan Smith, the complainant, had been drinking at various locations including, finally, in the Teddington Arms public house. He accepted that he had drunk far too much and was indeed intoxicated. 4. The co-accused, Daniel Wilson, was also in the Teddington Arms with his pregnant girlfriend. At some stage during the evening there was an incident inside the public house involving the complainant, the co-accused and his girlfriend, after which the complainant was seen with a swelling over his left eye. This was not the subject of an allegation of crime. 5. Shortly after, the complainant went outside the public house and was involved in another altercation with the co-accused. Thereafter, the appellant punched the complainant once. He fell to the pavement. On the pavement it was clear that he had, at least at some stage during the course of that evening, sustained serious injury. An ambulance was called. He was taken to hospital and found to have suffered head injuries including a fracture to the left frontal bone of the skull, an extradural haematoma and a suspected fracture of the left eye socket. It was accepted that he had suffered really serious body injury. 6. The appellant was subsequently arrested and interviewed. He did not require the attendance of a solicitor. He told the police that he had punched the complainant who had fallen to the ground and hit his head. 7. The prosecution case in relation to this appellant was that the punch had caused the complainant to fall to the ground and hit his head on the pavement. The count of assault occasioning actual bodily harm was available to the jury both in relation to the co-defendant and this appellant if they were not sure which blow had caused the really serious harm. 8. The appellant's case was that although he accepted he had struck the complainant he had done so using lawful force to protect the pregnant girlfriend of the co-defendant and prevent further offending by the complainant. Furthermore, in any event, in respect of the count of inflicting grievous bodily harm the prosecution could not establish that it was the blow of this appellant that had caused ultimately the serious bodily injury. Thus, the issues for the jury were: whether really serious injuries had been caused when the appellant struck the complainant causing him to fall and hit his head onto the pavement; whether he had lawful justification or excuse for striking the complainant; whether the degree of force used by the appellant was reasonable in all the circumstances for the prevention of crime or in defence of himself or another; whether the appellant honestly thought at the time it was necessary to use force to defend himself or prevent further crime or, in the alternative, if the jury were not satisfied in relation to the principal count, whether the punch had caused some injury. 9. The evidence flowed from the allegations that had been made. The complainant recalled that he had been involved in an incident inside the public house during which punches had been thrown. He said that he later went outside the public house, saw the co-defendant and recalled saying something like: "Come on, shake hands" but was then head-butted on the bridge of the nose. He had no recollection of what had happened thereafter. 10. More significant, the supervisor of the public house, Polly Wattridge, said she had seen the complainant being calmed down by others inside the public house and had later seen him with a swelling over his left eye. She said that at some time after, he had gone outside the public house and she had seen him fall and hit the concrete pavement. She described his fall as having “fallen like a tree trunk" and having spun round 180 degrees. There was a large amount of blood and he was unconscious. She had remained with him until he regained consciousness and the police had arrived. 11. Evidence was given by Dr Robert Chapman, a consultant forensic pathologist, who expressed the opinion was that, because of their severity, the fractures to the complainant's skull were caused by a heavy fall onto a hard surface. They could not have been caused by the complainant having received a punch and a head-butt. He said that the injuries to the nose were very unlikely to be caused by just pushing but if they had been caused by a punch there was a very low probability (also expressed as only a very slight chance) that it would have caused really serious harm. 12. In cross-examination he was asked about statements from Dr Shackleton (who had advised the defence) in terms that what Dr Shackleton had expressed by way of an opinion was put to him. In our judgment, that is not an appropriate way to cross examine, if Dr Shackleton was not to give evidence, because the questions appear to rely upon the stated but unproved evidence of another doctor, and the jury could then be influenced by the fact that there was an opinion from a doctor which was not adduced in evidence but which supported a particular contention as to the cause of the injuries. 13. Putting that point to one side Dr Chapman agreed that it was not possible to be completely sure whether the injuries were caused by the fall to the ground or the earlier punch to the left eye and that a previous injury causing some degree of stunning in combination with alcohol intoxication would have made the complainant more vulnerable to any later episode of trauma. His opinion was quite clear: i. "Q. So finally, what caused the really serious injuries to Ryan Smith? B. In my opinion it was a heavy and unprotected fall to the ground." 14. Notwithstanding that clear expression of opinion Dr Chapman accepted that in medical science certainty was never possible and when asked to express the percentage of certainty of his opinion spoke in terms of 95%. He thought it unlikely that the complainant would have been able to stand up, walk about and engage in a fight after he had suffered a serious injury. 15. In his defence the appellant gave evidence and said that he had been one of those who had assisted in separating the co-accused and the complainant following the first incident inside the public house. He accepted that in the second incident he had hit the complainant but said that he had done instinctively as a reaction as to what was happening and because he wanted to bring it all to the end to stop further fighting. He said he had acted reasonably in the circumstances and had not had the opportunity to weigh up precisely how much force would be necessary for him to be used. He did not accept he was responsible for causing the serious skull fracture and haematoma. He said that when he was interviewed by the police he had given a clear account of what he recalled had happened. 16. The co-accused also gave evidence in accordance with what he had said to the police. He said that he had not taken part in any joint enterprise with the appellant and neither punched nor head-butted the complainant. His girlfriend spoke of the insulting remarks that she had received in the public house and the altercation which her boyfriend had with the complainant. She also said, as indeed was common ground, that the co-accused had pushed the complainant in the face. 17. The grounds upon which this appeal is mounted revolved to no small extent around the evidence of the cause of the serious injuries suffered by the complainant. An application was made to dismiss the charge at a time when the appellant was charged with only grievous bodily harm. The Recorder observed that there was evidence on which the jury properly directed could be sure that some of the injuries were caused by the complainant's forehead hitting the pavement which was an immediate effect of the appellant's blow. 18. Now challenging that conclusion Mr Reid argues that at the time the appellant only faced a charge of grievous bodily harm and there was no sufficient evidence as to causation so the jury properly directed could not be sure the relevant injury was inflicted during the part of the incident in which the applicant was involved as opposed to an earlier incident. This of course involves the conclusions based upon what had happened in the absence of the evidence of Dr Chapman. 19. The single judge observed that on the papers there was evidence after the attack in the public house that the complainant was able to get up and walk about. There was evidence from which it could be concluded that the blow from the applicant was of such force as to cause him to go to the ground without protecting himself so he hit himself on the pavement with considerable force and as a result lost consciousness as a result of the blow. A permissible inference would be that serious harm was caused directly or indirectly by the blow, such the Recorder was entitled to reject the application. We agree with that conclusion. 20. The second ground of appeal, which is also a renewed application, is that the trial should have been stopped at the close of the prosecution because Dr Chapman had accepted that when the really serious injuries had been inflicted could not exactly be determined with a likelihood of only 95% that they had resulted from an incident outside the public house. The small chance that they did not result from the punch was too large to allow for a safe conviction. 21. The single judge rejected that submission, observing that the jury would be entitled to take into account all the evidence as to the circumstances of this injury. The fact that the doctor put forward a figure of 95% did not lead to the conclusion that the count should be withdrawn. In particular the jury had to take into account the evidence of Polly Wattridge that he fell like a tree trunk and then was rendered unconscious. 22. In our judgment, again, the learned single judge was correct to reject this ground of appeal. The opinion of the doctor, which is a fact upon which the jury were entitled to rely, was that the heavy and unprotected fall to the ground had caused those serious injuries to argue that the that his differentiation between his opinion and medical certainty justifies a submission of no case to answer is not tenable. 23. The third ground of appeal concerns the structure and nature of the summing-up in which it is said that the applicant's primary defence was confused with the defence of self-defence, which had not been relied upon by the applicant. Suffice it to say that we agree with the observations of the single judge that the Recorder dealt correctly with the unlawful element of the offence of inflicting grievous bodily harm and the direction was adequate to cover the facts of the case and the applicant's defence. 24. Mr Reid recognised that the judge used the phrase "he was or may have been acting in lawful defence of himself or another or may have been using reasonable force in prevention of crime". That deals sufficiently with the complaint as to the way in which the law was articulated. Furthermore and in any event, the judge adopted submissions made by Mr Reid after he had concluded his summing-up in relation to the law and gave the jury a full direction. 25. The final ground of appeal which is the ground upon which the single judge granted leave concerned the fact that the learned judge failed specifically to remind the jury of Dr Chapman's evidence on causation. The judge when summing-up the case to the jury gave a perfectly standard direction dealing with expert evidence, saying: i. "... the expert evidence is called to assist you and to deal with matters which are within the expertise of the witness but are likely to be outside your own experience or knowledge. The evidence given by the expert is not binding on you. It is hoped it is of some assistance to you when you are considering the matters that you have to decide and it is necessary to look at it in its proper perspective, which is that it only forms part of the evidence as a whole. At the end of the day, members of the jury, it is for you to decide, your decision on the various matters you have to decide, in view of all the evidence which you have heard. Of course, when doing that you can take the witness's opinion into account in coming to your own conclusions." 26. It is entirely correct that the learned judge did not summarise the evidence of Dr Chapman although he did make it clear that this appellant's defence was that although he accepted that he struck the blow he did not accept the blow was the cause for serious injuries, the fractured skull and the haematoma. The judge also reminded the jury of the evidence of Polly Wattridge, to the effect that she saw the complainant fall "like a tree trunk and spinning around about 180 degrees", by which stage he was unconscious with blood all over the place. 27. The learned judge could properly have included within his summing-up a short summary of that which Dr Chapman had said, albeit it is important to underline that this trial had taken only some slightly over two days in its entirety. Dr Chapman had given evidence the day before speeches and summing-up and it is beyond doubt and indeed confirmed by counsel that some attention was paid to Dr Chapman's evidence by both. 28. When the judge came to sum-up Mr Reid drew his attention to the judge's failure to deal with aspects of self-defence but made no complaint at all about the failure to deal with Dr Chapman's evidence in extenso. This was notwithstanding that twice he was asked whether there was any aspect about which he wished to make complaint. Mr Reid explains that he was focusing on the legal direction and had not appreciated that the learned judge had not dealt with what Dr Chapman had said. 29. It is important to underline, as has been identified in the Review of Efficiency of Criminal Proceedings, that the judge's obligation is to remind the jury of the salient issues in the case and save in the simplest of cases the nature of the evidence to relevant to each issue. This need only be in summary form to bring the detail back to the minds of the jury including a balanced account of the issues raised by the defence. It is not necessary to recount all relevant evidence (see paragraph 310). 30. That recommendation is now incorporated in the Criminal Procedure Rules 2015 and 25.14, which requires that the court (a) to summarise for the jury "to such extent as is necessary" the evidence relevant to the issues they must decide. It is for the judge to decide the extent to which it is necessary to reiterate the evidence which the jury had heard only the previous day and which had been the subject of submissions by counsel. He certainly left the issue, namely whether the blow inflicted by the appellant had caused really serious injury to the jury and he made it clear that that was one of the issues in the case. Although, as we have said, it might have been better had the judge devoted a few sentences to a summary of that which Dr Chapman had said to suggest that his failure to do so renders this verdict unsafe is to go too far. 31. In the circumstances this appeal against conviction dismissed. 32. In relation to sentence, Mr Reid refers to the appellant's prior good character and the fact that the learned judge identified, correctly, the starting point of 18 months' imprisonment as a category 2 case within the guidelines issued by the Sentencing Council before going on to accept that there were a large number of mitigating circumstances that could be taken into account, not only his good character but also the fact that this was a single blow, the appellant was remorseful and that he had an excellent character and had done very well despite the difficulties in his past. Mr Reid argues that having identified these mitigating features and the starting point he failed to reduce the starting point to take those into account. That submission fails to reflect the fact that although not identified as aggravating features, there is no doubt that the judge noted the features, namely that this incident occurred in a public house, had caused lasting harm and was the result of intoxication. These features are potentially aggravating. For our part, whereas we have come to the conclusion that this sentence was at the top of the range available to the learned judge, we are not prepared to conclude it is either wrong in principle or manifestly excessive. The renewed application for leave to appeal against sentence is also refused.